Many Cerebral Palsy Lawsuits Unfounded

February 27, 2003

Lawsuits blaming obstetricians for cerebral palsy and other infant brain damage may constitute the single biggest branch of medical malpractice litigation, yielding lawyers the highest settlements and the richest contingency fees, rivaled only by failure to diagnose cancer.

However, according to a new study by the American College of Obstetricians and Gynecologists (ACOG), along with the American Academy of Pediatrics, "the vast majority" of brain damage and cerebral palsy among these infants originates in factors largely or completely outside the control of delivery-room personnel. Contrary to a longstanding assumption, interruption of oxygen during labor is "not a significant cause in most of the cases."

If ACOG's report is to be credited, much of this litigation looks to be scientifically unfounded.

Most juries, it seems, decide such cases in favor of the defense, but those that find for the plaintiff return awards that not infrequently top $10 million.

Last year the National Law Journal's nationwide top-100-verdicts list included 10 medical liability cases involving delivery and care of newborns -- half or more alleged oxygen deprivation.

Of the 10, six were from New York courts, including a trio of Brooklyn cases at $94 million, $90 million and $62 million.

Most cases settle without trial, even when the cause of the condition is speculative. Yet defensive medicine, including the skyrocketing of Caesarean-section incidence to one-quarter of births, has failed to lower cerebral-palsy rates.

Source: Walter Olson (Manhattan Institute), "Delivering Justice," Wall Street Journal, February 27, 2003; based on "Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology," the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics, January 31, 2003.